Associate Supreme Court Justice Antonin Scalia created quite a stir last year when, at one of his infrequent lectures, security guards demanded that journalists who had taped one of his speeches erase their tapes. Their excuse: Scalia disliked having his lectures recorded. Then, last October, Scalia had an Associated Press reporter turned away at the door of his speech to the American Council of Life Insurers. Why? Scalia didn't want media coverage of his remarks.
But after seeing "Nino" (as his friends address him) "do his thing" on Feb. 21 before invitees to a conference at the American Enterprise Institute, a high-profile right-wing think tank, it's easy to understand why.
The topic was "International Law and the U.S. Courts," and as the conference moderator spent roughly three minutes introducing Scalia, the C-SPAN camera caught Scalia fidgeting with his pen, reminiscent of a racehorse who can't wait for the starting bell.
When Scalia did take the podium, he thanked the moderator for being "mercifully short" in his introduction, then launched right into his thesis on "foreign law" as it affects decisions by U.S. judges, particularly his fellow Supreme Court justices.
To make a long, rapid-fire lecture short, Scalia said he thinks foreign law has its place when the issue is, for instance, treaties between the U.S. and other nations, or contracts between the U.S. or its citizens and other countries and/or their citizens – and besides, he speculated, foreign law might one day be made a compulsory subject in law schools simply because, he analogized, "I believe, just as you do not understand your own language until you've taken some foreign language, whether it be Latin or German or any other one, so too I don’t think you understand your own legal system until you see how ordering of the same matters could be done in a different way. That may be the only way to appreciate the distinctiveness of your system, what drives it, is to examine some other system."
Moreover, Scalia claimed that he himself has been known to use foreign law.
"I think people are concerned principally about the use of foreign law in the interpretation of the United States Constitution," he analyzed, "and even there, I have to tell you I cannot say it is never relevant. To tell you the truth, I probably think it's relevant more often than most people on the Supreme Court. Of course, the foreign law I think is relevant is very old foreign law, very old English law, because what is meant by the terms of the federal Constitution depended upon what Englishmen in 1791 would consider due process of law, what they considered to be cruel and unusual punishment and so forth. So I use foreign law all the time, but it is very old English law."
But that is, as he said, old foreign law. Where foreign law, and specifically modern foreign law, is not relevant, he said, is when U.S. judges are interpreting U.S. law, and especially when Supreme Court justices are deciding constitutional issues.
"It is my view that foreign legal materials can never be relevant to an interpretation of, to the meaning of the United States Constitution," he stated.
Scalia then mentioned five Eighth Amendment cases where the justices had looked to European law for support for their decisions – one where the Court struck down forfeiture of citizenship as "cruel and unusual punishment," and four in which the Court limited the application of the death penalty – but then he got to an issue of pressing interest to the adult entertainment community.
"Recently, the Court has expanded the use of foreign law beyond the area of the Eighth Amendment," Scalia claimed. "In Lawrence v. Texas, decided in 2003, the Court relied upon action of the British parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were unconstitutional under the American Constitution."
Scalia, who in late 2004 told attendees at the St. Thomas More Society of DuPage County's (Ill.) "Red Mass" that, "We are fools for Christ's sake," traces the Lawrence decision his belief that, "The overwhelming majority of judges currently sitting in all courts are constitutional evolutionists and the only colleague of mine that I know does not believe in an evolving constitution is Justice Thomas."
By "constitutional evolutionist," Scalia refers to what he calls "the living Constitution paradigm," under which "it is the task of the Court to make sure that the current Constitution comports with, as we have put the point in the Eighth Amendment context, 'the evolving standards of decency that mark the progress of a maturing society'," Scalia explained, quoting from the recent high court holding in Roper v. Simmons, which ruled the death penalty inapplicable to minors.
"Thus," Scalia continued, "a constitutional right to abortion, which assuredly did not exist during the first few centuries of our country's existence, does exist today. Likewise a constitutional right to homosexual conduct."
What will not be a surprise to anyone who's read Scalia's dissent in Lawrence is that his main objection to the alleged infiltration of American constitutional jurisprudence by foreign legal and parliamentary decisions focuses on sexual rights – a focus that was sure to play very well to the ultra-conservative American Enterprise Institute audience – and to a lesser extent on death penalty disputes.
"Consider, in Lawrence, the Court cited European law to strike down sodomy laws," Scalia inaccurately claimed. "But of course, Europe is not representative of the whole world. Zero out of 50 countries in Europe prohibit sodomy. Not necessarily, by the way, because of the democratic preferences of those 50 countries, but because of the uniformity imposed by the European Court of Human Rights. But 33 out of 51 countries in Africa prohibit it; eight out of 43 countries in the Americas; 27 out of 47 Asian-Pacific countries; and 11 out of 14 countries in the Middle East. Thus the rest of the world aside from Europe is about evenly split on the issue."
Scalia is hardly the only one to claim that the Lawrence decision is "based on foreign law" – for instance, Family Research Council's three "Justice Sunday" churchcasts had that theme as their central issue – but a reading of that decision (which its religio-conservative critics can be relatively sure their audiences won't do) shows only a mention of non-U.S. laws. In fact, the opening paragraph of Justice Anthony Kennedy's opinion gives nearly the entire basis of the ruling, and sets the stage for the many present and future challenges to "morals" legislation.
"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," Kennedy wrote. "In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." [Emphasis added]
In fact, Lawrence traces the evolution of personal liberty/substantive due process privacy rights (the two concepts are inextricably intertwined) from its earliest beginnings in Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923), to where the concept picked up steam in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), both dealing with availability of contraceptive devices; then Roe v. Wade (1973) and Casey v. Population Services Int'l (1977), each of which relied in part on both Griswold and Eisenstadt – then on to the Reagan-era Bowers v. Hardwick, the Georgia anti-sodomy case decided by the relatively conservative Burger court in the middle of Ronald Reagan's second term as president, which decision the Supreme Court overturned with Lawrence, relying largely on Fourteenth Amendment due process analysis.
It's worth quoting the Lawrence decision at some length to understand the competing analyses engaged in by, on the one hand, Justice Byron White in Bowers, and on the other, Justice Kennedy in Lawrence. (We may also note that these passages throw much light on the underpinnings of the use of Lawrence in current adult industry cases like U.S. v. Extreme Associates and Free Speech Coalition v. Gonzales.)
"The Court began its substantive discussion in Bowers as follows: 'The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time'," Kennedy wrote. "That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."
"This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects," Kennedy continued. "It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."
"Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: 'Proscriptions against that conduct have ancient roots.'" [Emphasis added.]
The Bowers court then proceeded to trace – selectively, of course – anti-sodomy prejudice in law and practice back through the ages, though Justice Kennedy noted that, "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," though 16th century English law prohibited sodomy between both homosexual and heterosexual couples, and 19th century legal commentators read American laws to prohibit sodomy for both groups as well.
"It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so," Kennedy noted, taking specific aim at then-Chief Justice Warren Burger's statement in his concurring opinion in Bowers that, "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." Justice Kennedy responded in Lawrence, "As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults."
However, it was Burger's clearly false claim that homosexual sodomy has been "subject to state intervention throughout the history of Western civilization" – a statement that implicates foreign laws at least back to the ancient Greeks (who, as any student knows, had no problem with gay sodomy) – that forced Kennedy to mention the views of the heirs of that "history of Western civilization" and to comment on how those heirs' views on the subject had changed. The Lawrence opinion mentions The Wolfenden Report, a 1963 British study by the Crown's Committee on Homosexual Offenses and Prostitution, whose conclusions were incorporated into British law ten years later, and a 1981 (five years pre-Bowers) decision by the European Court of Human Rights that struck down an anti-gay-sodomy law in Northern Ireland.
Even in the U.S., Justice Kennedy's research found an increasing acceptance of private homosexual conduct, specifically in Texas itself, where the state's attorney admitted, in State v. Morales (1994), that "as of that date it had not prosecuted anyone" for practicing sodomy in the privacy of their own home. He also noted Romer v. Evans, where the Court struck down an amendment to the Colorado constitution that would have deprived gays of equal protection under that state's laws.
Finally, on the second-to-last page of the Lawrence majority opinion, Kennedy writes, "To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." [Citations omitted; emphasis added]
Kennedy's final sentence clearly shows that European law is not "cited ... to strike down sodomy laws," as Scalia would have his audience believe, but rather to point out that state governments, whose powers over human rights as enumerated in the Bill of Rights – and here, one might specifically call attention to the Ninth Amendment – are limited by the due process clause of the Fourteenth Amendment, and therefore have no legitimate governmental interest in prohibiting consensual sodomy – and guess what? European courts and legislatures have found a similar lack of legitimate governmental interest in prohibiting the conduct!
That, however, wasn't good enough for Scalia. During a question period after his lecture, one attendee asked whether the mere mention of foreign sources that agreed with the majority's decision was even relevant, since such sources weren't "controlling" of the decision.
"When you say 'not controlling,' they are cited because they are relevant," Scalia responded. "That is, they are cited because since that court said it is so, it is more likely that it is so. They're not citing just for fun; they're cited because they're supposedly relevant to the court's analysis: Since the German court thought this, it's probably right under American law."
But "control" is the issue, and no justice would agree that foreign decisions or laws can be the basis for the Supreme Court's rulings on American law.
During the remainder of his AEI lecture, Scalia's misinterpretations continued unabated.
"The Court's reliance on foreign sources has also been selective as to when foreign law is consulted at all; not only which foreign law you consult but when do you consult it," Justice Scalia continued. "For example, even though the United States was in the minority in allowing states to prohibit sodomy, it was not in the minority in allowing states to restrict abortion. According to the United Nations, the United States is now one of only 53 countries classified as allowing abortion on demand versus 139 countries allowing it only under particular circumstances or not at all. Among those countries the UN classified in 2001 as not allowing abortion on demand were the United Kingdom, Finland, Iceland, India, Ireland, Japan, Luxemburg, Mexico, New Zealand, Portugal, Spain, Switzerland, and virtually all of South America. But the court has generally ignored foreign law in its abortion cases."
"Abortion on demand," of course, is a trick phrase; it is not the holding of Roe v. Wade or any subsequent ruling on abortion rights. While Justice William Brennan, in his majority opinion in Roe, stated that, "It is undisputed that, at common law, abortion performed before 'quickening' — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense," he went on to note that it wasn't until 1803 that British law deemed abortion of a "quick fetus" to be a statutory felony; well after the writing of the American Constitution, which Scalia claims is the stopping point for his consideration of foreign law as it applies to that document.
After considering many factors pro and con regarding the availability of abortion, Brennan wrote, "[A]ppellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree... With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point [at which, he said, the State's interest becomes "substantial"], in the light of present medical knowledge, is at approximately the end of the first trimester... It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health... This means, on the other hand, that, for the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." [Emphasis added]
Despite the fact that, in order to preserve the life or health of the mother, a woman could conceivably have an abortion under Roe up to the day before birth, this is still far from Scalia's "abortion on demand," and indeed, states have generally restricted the procedure during the second half of the pregnancy – roughly the period after "quickening" – except for reasons affecting the mother's health. So once again, Scalia misled his audience.
The rest of Scalia's talk, during which the C-SPAN camera caught him frequently looking at his watch, touched on other areas where foreign law compared favorably or unfavorably to American law under the Constitution, including decisions regarding hearsay testimony, gun ownership and online free speech. Scalia concluded, "If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are, and nothing has changed. I daresay that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication, and is it really an appropriate function of judges to say which are and which aren't? I think not."
What the Justice failed to note, however, was that his Supreme Court brethren feel exactly the same way.
The question-and-answer period was interrupted several times by what appeared to be student protesters asking intentionally snarky questions with long prologues, but the students were way overmatched by both Scalia's wit and his impatience. He usually cut those questioners off before they'd even gotten to the point(s) of their questions – once commenting, "I'm sorry; let's try another last question. This does not relate to the use of foreign law in United States opinions, and I therefore will not answer it." – and one student was physically ejected from the conference. However, other questions were directed to that subject, including one in which Scalia was asked about the impact of moving from a judicial interpretation of the Constitution as an "evolving document" to one of "strict constructionism" – a term with which Scalia took some umbrage.
"I'm not a strict constructionist, I'm sorry to tell you that," Scalia replied. "I believe legal texts should be interpreted neither strictly nor loosely; they should be interpreted reasonably, and the example I often use is, if you really are serious about being a strict constructionist, you would say the First Amendment would not be offended by Congress's censoring handwritten mail, because the First Amendment only says, it guarantees freedom of speech and of the press and a handwritten letter is neither speech nor press, if you want to be strict about it."
In a recent speech, George Lakoff, a professor of linguistics at UC-Berkeley, made the problem of strict constructionism even more clear: That it's impossible to practice.
"Take the notion of strict constructionism, which is going on in the Alito [confirmation hearings] right now," Lakoff told an audience at the Commonwealth Club of California in February. "There you have the idea of – which is a very interest metaphor – 'following the law,' as if the law was a path and you just go along it; you have nothing to do with it; you just go where the law tells you. Or Alito says he does 'what the law requires,' as if the law were an agent and he were not; 'the law is requiring it, not me.' He gives a narrow interpretation; he does what the Constitution says, and it's almost as if the judge were a machine. He applies the law. The law is there; he applies it; he does what the law says, just mechanically."
"Now, this is a little strange," Lakoff continued. "After all, he says he does what the law says, but he wrote dissenting opinions; opinions against what was taken to be the law. It's very strange to say he would judge according to the law, but he would presumably judge according to his dissenting opinions. So there's a little funniness here. But the funniness is in the very notion of strict construction of the Constitution. In order for any case to reach the Supreme Court, it cannot fit normal categories. If it's a straightforward case of theft, a straightforward case of murder, a straightforward case of embezzlement – someone's caught; they've got the evidence – it never gets to the Supreme Court. If it fits the category, no problem. In order for a case to get to the Supreme Court, it must not fit the categories. That's the only way that can happen. Now, when a judge gets a case that does not fit the categories, the Supreme Court must extend or contract the categories to make it fit in some way. Whether they extend it in a broad interpretation or narrow it in a narrow interpretation, they are changing the meaning of the words. And when they change the meaning of the words, they change the world, because those are laws and they affect people. And it doesn't matter if they narrow it or broaden it, they're going to change how the law applies and they will change what is legal and what is illegal. There is no way that any Supreme Court at any time can avoid doing that. There is not such thing as a strict construction of the Constitution. It is cognitively impossible; ask any cognitive scientist."
These days, Scalia describes himself as a "textualist," by which he means that he first looks to the Constitution's text for the document's meaning, and if there's any lack of clarity, he then consults the writings of the Founding Fathers and, if necessary, writings about pre-constitutional English law.
"But of course, the First Amendment has always been understood as protecting freedom of expression," Scalia continued in his lecture, "and I think that is a reasonable interpretation of it, and that is the interpretation I apply, which is why I was the fifth vote in the flag burning case, which was an expression of contempt, is one way of expressing it, and you can't have a law against an expression of contempt."
Indeed, as far back as his 1986 confirmation hearings for his seat on the high court, Scalia claimed to support protection of freedom of expression, even going so far as to define "speech" under the First Amendment as "any communicative activity," and to agree, under questioning by Sen. Joseph Biden on that point, that that would include "non-verbal and also not written" communication, even "physical actions."
Sadly, the Justice's opinions in Supreme Court cases put the lie to such claims.
"I join the plurality opinion because I think it represents a correct application of our jurisprudence concerning regulation of the 'secondary effects' of pornographic speech," Scalia wrote in his short concurring opinion to City of Los Angeles v. Alameda Books. "As I have said elsewhere, however, in a case such as this our First Amendment traditions make 'secondary effects' analysis quite unnecessary. The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex." [Emphasis added.]
Similarly, in Z.J. Gifts v. City of Littleton, he wrote, "The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity."
Scalia might argue that suppressing the business of "pandering sex" is somehow different from suppressing sexual speech itself, and that same sort of hair-splitting is all over his dissent in Lawrence, where his claim is that the majority has ruled that the Court is powerless to overturn laws that forbid certain private behaviors even, as Justice Kennedy put it in the majority opinion, "absent injury to a person or abuse of an institution the law protects."
The problem is, Scalia seems unable to understand the Ninth Amendment, which states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and the Tenth, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
The Fourteenth Amendment, which states in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," essentially makes the congressional prohibitions in the Bill of Rights, including the non-enumerated rights concept of the Ninth Amendment, apply equally to the states.
Hence, Scalia is textually incorrect when he writes in his Lawrence dissent, "Though there is discussion of 'fundamental proposition[s]', and 'fundamental decisions', nowhere does the Court's opinion declare that homosexual sodomy is a 'fundamental right' under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a 'fundamental right.' Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: '[R]espondent would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.'" [Citations removed here and below]
Certainly, it would have been helpful if the Lawrence majority had deemed its analysis "strict scrutiny," but its extensive examination of Bowers' flawed historical antecedents made that unnecessary. Moreover, there was no need to describe sodomy as a "fundamental right"; the Ninth and Tenth Amendments make it clear that the burden is on the government to establish its legitimate constitutional power to regulate private adult consensual sexual conduct of any sort –without which proof, citizens are free to exercise their non-enumerated Ninth Amendment right to sexual freedom and their Fourteenth Amendment liberty interest in sex!
Scalia's excuse for not holding firm to his "textualist" view was the doctrine of "stare decisis," or adherence to precedent.
"I do believe in the doctrine of stare decisis," he said, "which means for anybody who has any judicial philosophy, you're willing to tolerate what's been around a long time and everybody's gotten used to. You can't rip everything apart and reinvent the wheel every five years. Thus, most of the decisions that have been rendered under an evolutionary construction, I would leave in place. Not all of them, but most of them. For example, perhaps the biggest stretch the court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states. Nobody ever thought the Bill of Rights applied to the states. It begins, 'Congress shall make no law,' and when I was in law school, it was still a controversial proposition, whether the Fourteenth Amendment incorporated the Bill of Rights and spat them out upon the states. But you know, we've been doing this for 50 years now; it's not a problem. I just take the same rules that I apply to the Bill of Rights against the federal government and I apply it against the states. It is manageable; the people have gotten used to it, and I'm not about to tell the people of New York State or of any state that their state government is not bound by the First Amendment. So stare decisis saves you from those wrenching departures that would make it impossible to go back to a correct interpr
